(Why the seven-week delay when I’d promised merely “a day or two”? The day of the last post, I underwent [relatively] minor surgery for pain from a high ankle sprain, that hadn’t fully responded to approaches short of arthroscopic ankle surgery. [The surgery seems to have been successful, but I probably can’t be sure til I regain full ankle flexibility/strength. I can walk almost entirely normally now, but strength and flexibility are still noticeably diminished, albeit improving daily.] Although I had spare time immediately afterward, I wasn’t particularly inclined to post-writing, and as time passed I never got back in the groove. Time winding down before the ultimate opinion has put me back on track. 🙂 )

Back to forum analysis

Before I tackled oral argument, my previous posts discussed offensive speech. I left one question hanging: what sort of forum is Texas’s specialty license plate program? Is it a designated public forum or a limited public forum?

This turns out not to matter. To judge offensiveness requires adopting a particular viewpoint, but regardless which sort of forum Texas specialty plates are, restrictions must be viewpoint-neutral. As for Texas’s argument that judging offensiveness is “objective” and viewpoint-neutral, this plainly must fall in light of the Court’s repeated insistence that “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive”.

Censoring based on offensiveness is not viewpoint-neutral. But in either a designated public forum or a limited public forum, restrictions must be viewpoint-neutral. So it doesn’t matter which Texas’s program is: prohibitions based on offensiveness must fall.

My opinion

On Texas

If you’ve paid any attention to this series, it should be obvious that I think Texas must lose. When Texas opened up a forum for speech on plates and invited essentially everyone onto them, they lost control over what can be said there. An amicus brief from the Rutherford Institute best captures my thoughts on this case. (Which isn’t to say I disagree with other briefs supporting Texas SCV, simply that the approach here best matches my reasoning.)

Other specialty plate programs

So much for Texas’s program. What about programs in other states? Such disputes previously have centered on Confederate flags (by other SCV divisions), but perhaps the most prominent topic of controversy has been adoption/abortion/pro-life/pro-choice advocacy. Some states have explicitly ordered designs taking sides in that controversy, or have approved such designs submitted by private parties. Inevitably the other side files suit for a chance to say its piece. What should happen? I think it depends on the contours of the program.

If a state legislature passes a law ordering a design be produced, or delegating that to the state DMV, that legitimately does seem to me to be government speech. Private parties have no right to butt in to demand alternative designs. The place to challenge such programs is in the voting booth, not the courthouse. The same is true if privately-submitted designs receive legislative approval in a pick-and-choose process: the available designs are government speech (although the designs themselves may be hybrid speech).

On the other hand, if a state provides a specialty plate program in which private parties may request designs, and those designs aren’t explicitly limited to particular topics, the specialty plate program is a designated public forum in which permitted private parties can say whatever they want. (Subject to the usual traditional public forum restrictions.) (This is Texas’s program.)

If the state provides an open program with restrictions, then we have a limited public forum. A specialty plate program along these lines might or might not be able to exclude speakers. For example, many Texas designs recognize particular colleges. A state program allowing only colleges to submit designs, consisting of a color scheme and a logo, wouldn’t be required to accept a specialty plate on some other topic, or from a non-college. A specialty plate program that allowed, say, “non-political” designs only would be a much closer question that would probably swing the other way. (Who’s to say what’s political and what isn’t, “viewpoint-neutrally”?) But if criteria were objective and viewpoint-neutral, restrictions might be permissible.

One slightly disconcerting moment at oral argument came after Texas SCV argued that Texas pretty much couldn’t prohibit anything on specialty plates. With minor adjustments for readability:

Justice Scalia

So you’re — you’re really arguing for the abolition of Texas specialty plates, aren’t you? I couldn’t make a better argument for — in that direction than — than what you’ve been doing.

Mr. George

Well, we had got along without it a long time before we got it, and we can get along without it again.

Justice Kennedy

So in a way, your argument curtails speech?

I’m not sure whether this ever received an answer. But the answer I’d have given is simple: “We call Texas’s bluff.” As I’ve noted, other states have had to respond to court cases in favor of unliked speakers: on license plates, in Adopt-A-Highway programs, in municipal transit ad programs, and so on. The states and cities operating these programs generally haven’t shut down the programs to prevent undesirable speakers from speaking, and many don’t even adjust program parameters to work around court decisions. No matter what it might bluster, Texas won’t shut down its program if it loses. Only very few ill-mannered states are likely to pick up their toys and leave, rather than share them with speakers they don’t like.

Predictions

My prediction is that Texas will lose unanimously. The justices generally were somewhat taken aback by the sprawling assertions made by Texas SCV, but that seems only natural when good people contemplate potentially allowing vile, racist speech. The justices, as judges, ultimately must be, and are, less susceptible to these emotional tuggings than it might seem in the moment of argument. This is a very pro-speech Court; I think they’ll have very little trouble getting over their prejudices against speech they might not like.

Only Justice Scalia seemed to have particular sympathy for Texas, and for Texas being permitted to run its program however it wants. I think he viewed specialty plates and programs as mostly one giant exercise in frivolity: “Why aren’t bumper stickers good enough?”, “Why does anyone care what’s on their license plate?”, to put words in his mouth. There’s something to that: if we returned to a world where license plates were solid-color letters on a solid-color background, it’s hard to say anyone would really be much worse off. But just because a particular means of speech seems unbelievably stupid doesn’t justify shutting it down. I don’t think Justice Scalia would hang up on that in an opinion.

Ultimately I think the open nature of Texas’s invitation, combined with the standardless system by which Texas can reject designs, will sway him against Texas, even if he thinks the entire controversy is a waste of time. Justice Scalia was one of the votes striking down statutes criminalizing flag-burning on the basis of its offensiveness. I don’t see how he would abrogate that position on offensive speech just because Texas nominally exercises “effective[] control” over the specialty license plate program but doesn’t specifically cabin designs to limited topics.

Next time I return to San Francisco v. Sheehan to discuss the opinion in that case. And unlike last time, I’ll guarantee this discussion will issue tomorrow. (Barring Dreamhost downtime, server issues, Judgment Day, &c.) 🙂

Yesterday I discussed offensive speech, especially relevant to the Texas license plate situation because the design’s being seen as “offensive” was Texas’s justification for denying Texas SCV‘s request. Today I talk a bit about oral argument.

Government speech

Texas hammered on its government-speech argument, but it generally didn’t get a very receptive audience. As Lyle Denniston observed, most of the justices’ questions and comments implicitly assumed there was a free speech issue to determine — which wouldn’t be the case if Texas SCV’s design were government speech. I doubt there’s more than a vote or two for these plates being government speech, if that.

One particularly gratifying discussion of government speech occurred when Texas’s advocate attempted to assert the specialty license plates were government speech because of the level of control, and Justice Kennedy noted the circularity of the argument. It was good to see practically the first problem I noticed in Texas’s argument, was also noticed on the bench. Chief Justice Roberts’s expression of skepticism about the program having no clear, identifiable policy being articulated, instead stating Texas was doing it for money (later joined by Justice Alito on the latter point), was also welcome.

A fair bit of time was spent discussing hypothetical “Vote Republican” and “Vote Democrat” license plates, and whether a state might approve one and deny the other. It’s not clear to me (nor was it clear to the justices) that “government speech” would directly prohibit this, but various “independent rules” were observed that would prevent such (just as such electioneering would be prohibited, somehow, in official ballots).

Forums

As I suggested earlier, Texas’s specialty plates program seems to be either a designated public forum or a limited public forum. Justice Kennedy picked up on this, asking if this was a case where Texas had opened “a new public forum in a new era”. Justice Alito posed multiple hypothetical questions involving government-established places where speech might occur, and the implication I drew from his comments suggested that he also viewed such cases as public forums. Each justice also presented hypothetical cases where the government set up a place for speech to happen (a billboard with a state message on it, with a small space for private speech to take place; officially-designated soapboxes in parks), then questioned whether it could be government speech or instead a public forum.

Justice Alito also probed the nature of the license plate forum if the state accepted only colleges, then colleges plus scenic places, and so on, gradually expanding into everyone. The point being: at what dividing line is a scheme no longer government speech? Texas SCV’s answer was that every state-designed plate would be government speech — but plates designed by private entities would be those entities’ speech.

“Offensive” speech

Various justices expressed concern that approving Texas’s denial might lead to regulation of offensiveness in other forums. Justice Ginsburg characterized the “might be offensive” standard as “nebulous” and granting too much discretion. Justice Kagan worried about approval of regulation of offense spreading into more and more forums, producing more and more regulation of speech.

The true fireworks for offensiveness, of course, arose when Texas SCV’s free-speech nut lawyer rose to defend their position. In essence he argued that once Texas extended an open invitation to anybody, they no longer could control what was said. Then, in response to successive questions, he argued Texas couldn’t prohibit license plates with swastikas, “jihad” (which he initially misheard as “vegan”, to laughter), “Make pot legal”, “BONG HiTS 4 JESUS” (more laughter, and a high point of the argument), and ultimately “the most offensive racial epithet that you can imagine”. Truly it was a glorious display of zeal for freedom of speech.

A banner “reasonably viewed as promoting illegal drug use”, or “dumb advocacy”? But maybe protected speech, on a specialty license plate (picture by Mlschafer, public domain)

Selectivity

Various justices also made comments as to Texas’s non-selectivity in approving plates. Texas approved over 400 plates and rejected only around a dozen. Clearly several justices thought that near-blanket approval weakened any argument Texas might have for the state carefully exercising discretion in every instance, and strengthened the argument that they’d opened up a public forum for speech.

Those are some of the high points of argument. If you’re interested in more detail, see the transcript.

Next time, it’s probably on to a series wrapup. But no promises yet, as I haven’t written up enough thoughts to be certain. And again, as I noted yesterday, this might end up delayed a day or two. Til next time!

Yesterday I discussed government speech, and Texas’s arguments that specialty plates are government speech that individuals can’t compel Texas to make. Today I discuss the First Amendment forum doctrine.

Not a forum

If Texas ran its specialty plate program as a contest, picking a few choices from a vast selection according to its own whims as occurs on public TV, it might not be a forum. (That might also make it government speech.) (Or maybe I’m grasping for a plausible example, and I’ve grasped wrongly. Hedge!) But Texas accepts basically anybody, so it’s a forum.

Traditional public forums

Some forums have always been open places of discussion: traditional public forums. These include public sidewalks and parks. Here, no restrictions on content or viewpoint are permitted (except a very small list). Government may impose reasonable content/viewpoint-neutral restrictions as to speech’s time, place, or manner. But in doing so it must further significant government interests, and restrictions must be narrowly written and leave open ample alternative channels for speech. For example: no use outside park hours, potentially you need a permit granted nondiscriminatorily, don’t exceed noise level limits, stay off grass being reseeded.

Specialty plate programs are a modern invention, obviously not a common-law forum historically open for discussion.

Nonpublic forums

Places that are forums that aren’t traditionally open, that government hasn’t opened to public expression, are nonpublic forums. Examples are courthouses and government buildings: generally, government property reserved for some particular use. Government can employ restrictions on content here, to further those particular interests. Otherwise, restrictions match those in traditional public forums (and particularly can’t restrict speech based on its viewpoint).

Texas invited everyone onto its license plates, opening them to public expression. So Texas’s specialty plate program is not a nonpublic forum.

Designated public forums (and limited public forums)

Finally we have locations not traditionally opened, that government has opened to some public expression: designated public forums. The restrictions applicable in traditional public forums are also applicable in designated public forums.

There’s also an additional sort of forum, sometimes viewed as a subset of the designed public forum, where the government limits speech to certain groups or topics: the limited public forum. A limited public forum may place restrictions on content, but it can’t restrict based on viewpoint.

The various forum definitions logically subdivide the set of all possible forums. (Although to be sure, there remains argument as to what subdivision the Court’s cases have actually recognized.) By process of elimination, Texas’s program must be a designated public forum, possibly a limited public forum.

Recap

Let’s check our work. License plate designs are not traditionally open to ideas, but Texas allows anyone to propose a custom plate design espousing practically any idea whatsoever. The ideas are legion: in-state and out-of-state colleges (even bitter rivals), college sports teams, and professional teams; corporations; non-profits; causes; war veteran status; the whimsical (“Rather Be Golfing”); and many others. The individual selects a specialty plate and displays it publicly. Moreover, Wooley v. Maynard indicates that individuals have First Amendment rights in what their license plates say. So Texas’s specialty plates are public expression, at the government’s invitation.

Texas’s specialty-plate program is a designated public forum, possibly a limited public forum. Hold the question as to which one — we’ll return to this later.

Disclaimer

The following is my understanding of First Amendment law, gleaned from years of reading numerous free speech opinions, summaries, and analyses. I’m generally confident in this explanation, but I may well have made mistakes, or simply missed nuance present in the cases but not in the summaries I’ve read. Please point out mistakes in the comments.

Of course, I really have no business trying to explain First Amendment jurisprudence, if I want it explained correctly. First Amendment law is incredibly complex. My haphazard reading will miss things.

But I’m barging ahead anyway, for a few reasons. First, I want to talk about this. Second, it’s fun to talk about it! Third, you don’t learn unless you’re willing to look like a fool from time to time. Fourth, the law is not this recondite, bizarre arcana that only lawyers and judges can understand. It may require some work to correctly understand laws, terms of art, rules of statutory construction, and relevant past decisions in the common law. But any intelligent person can do it if they make the effort.

Government speech

The “recently minted” government speech doctrine occupies an uneasy place in the realm of speech. For when government speech occurs, non-governmental speech open to First Amendment challenge is reduced. There must be some government speech: otherwise we’d absurdly conclude that the government’s World War II war-bond propaganda must be accompanied by anti-bond propaganda. Government programs often have viewpoints suppressible only in the voting booth. But this mechanism is sluggish and imperfectly responsive, and government speech’s discretion can be abused. So it’s best to be careful anointing government speech.

This is your government. This is your government on beef. Any questions?

Certainly some license plates — the state’s default designs and designs ordered by the legislature — are government speech, even if they’re also individual speech under Wooley v. Maynard. In each case the government wholly chooses what it wishes to say, and that message is government speech. The individual’s choice to assist in conveying it, under Wooley, isn’t government speech.

Circularity

But Texas’s government-speech argument, applied beyond plates it designs itself, is laughable. The linchpin of Texas’s argument is that because they control the program, that makes it government speech they can control. This argument is completely circular! By starting from their control over the program’s speech, they’ve assumed their conclusion.

This doesn’t mean Texas is wrong. But their circular central government-speech argument can prove nothing. This logical flaw is blindingly obvious. Texas’s lawyers can’t have missed this. If they made this their lead argument, they’re scrambling.

Compelling Texas to speak?

Texas’s better argument is that vehicle licenses and plates are its program, implicating its right to speak or not speak under Wooley. But the First Amendment restrains government power, not individual power. And many courts (although so far not the Supreme Court) have held that government can be compelled to “speak” in accepting advertising in government-controlled places (publictransitsystems, for a common example). The problem is Texas voluntarily created a specialty plate program open to all for speech. No “compulsion” derives from a voluntary act.

Texas didn’t fully control the specialty plate program, but rather opened it to anyone with money. (As Chief Justice Roberts noted in oral argument: “They’re only doing this to get the money.”) It’s possible there’s government speech in Texas SCV‘s plate, perhaps the occasionally-proposed “hybrid” speech. But once Texas opens the program to all, it loses full control over what’s said.

How then do we consider specialty plate programs? What controls may Texas exercise? Now we must decide how to classify the specialty-plate program with respect to First Amendment-protected speech. What sort of forum for speech is Texas’s specialty-plate program?

Yesterday I discussed the background to Walker v. Texas Division, Sons of Confederate Veterans. Stated briefly, Texas denied Texas SCV‘s application for a specialty license plate with a Confederate flag on it, because the design might be “offensive”. The question is whether Texas is required by the First Amendment to grant the application.

Today I discuss how specialty plate programs have fared in lower courts, and the arguments Texas and Texas SCV bring to the case.

In the courts

Almost every circuit court has required that specialty plate programs be viewpoint-neutral, not restricting designs because of their views. (And the one exception judged a program without an open invitation for designs.) So it’s unsurprising that Texas SCV won its Fifth Circuit case.

Texas appealed to the Supreme Court, which agreed to answer two questions. Are specialty plate programs “government speech” that need not be viewpoint-neutral, such that the design can be rejected as “offensive” (or, indeed, for almost any reason)? And did Texas discriminate by viewpoint in rejecting Texas SCV’s design?

Texas says license plates are entirely the government speaking, and it can say or not say whatever it wants. Texas relies on two cases: Pleasant Grove City v. Summum, in which a city’s approval of a limited set of monuments in its city park (and denial of a particular monument) was deemed government speech; and Johanns v. Livestock Marketing Association, in which a government beef-promotion plan that exacted a fee from beef producers to support speech (including the Beef. It’s What’s For Dinner tagline) was deemed government speech that program participants couldn’t challenge on the grounds that it compelled them to speak.

According to Texas, its specialty plates are government speech because Texas “effectively control[s]” the whole program. What matters is whether Texas “exercises final approval authority over every word used” — and it does. Texas allows private citizens to participate, but it has “final approval authority” over every design. Texas also argues that it can’t be compelled to speak by displaying the Confederate flag. By making a license plate, the state’s authority backs (or doesn’t back) every design approved or rejected. Plate purchasers shouldn’t be able to force Texas to espouse the views of an unwanted specialty plate, which drivers would then ascribe to Texas.

And of course, Texas says ruling against them would lead to “untenable consequences”. For every “Stop Child Abuse” plate there’d have to be an opposing plate supporting child abuse, and so on for the whole parade of horribles. Texas particularly notes that the Eighth Circuit forced Missouri to let the Ku Klux Klan join the state’s Adopt-a-Highway program under this logic. (The person behind me in the oral argument line related that one of the highways entering Arkansas was adopted by the KKK under that rule, giving Arkansas visitors that delightful first impression of the state.)

Texas also asserted that assessing how members of the public view a specialty plate is “an objective inquiry”, so that deciding a specialty plate “might be offensive” doesn’t discriminate on the basis of the specialty plate’s viewpoint. As to the Fifth Circuit’s criticism of the “unbridled discretion” provided by the “might be offensive” bar, Texas instead describes it as “discriminating among levels of offensiveness”, such latitude permitted because the state is “assisting speech”.

Texas SCV says Texas is being hypocritical. The Capitol gift shop sells Confederate flags. Texas recognizes a state Confederate Heroes Day. It maintains monuments to Confederate soldiers. Either Texas doesn’t really think the Confederate flag is offensive to the public, or its other “government speech” is flatly inconsistent with its specialty-plate stance.

Texas SCV also distinguishes the plates designed by the state legislature from plates designed by private entities. The former are the product of the government, but the only government involvement in the latter is in approval or disapproval. The driver has ultimate control, because only when he designs a plate and ultimately drives a vehicle with it does speech occur. And under Wooley v. Maynard — a case where a Jehovah’s Witness protested New Hampshire’s fining of people who covered up “Live Free or Die” on their license plates, and the Court said New Hampshire couldn’t force a person to espouse the state motto — it’s the individual’s speech (at least for non-legislatively-designed plates).

Texas SCV brushes off Summum and Johanns. Permanent monuments in parks have always been associated with the government, because parks physically can’t accommodate all monuments. Not so for license plates. (And Texas’s $8000 deposit covers startup costs that might justify treating rare plates differently.) And while the beef-promotion messages were part of a “coordinated program” by government to “advance the image and desirability of beef and beef products”, privately-designed specialty plates are not — especially as their fully–contradictorymessages are “consistent” only as a fundraiser.

Finally, given that privately-designed specialty plates are private speech, the First Amendment requires that restrictions be viewpoint-neutral. By restricting Texas SCV’s message based on its potential for offensiveness, Texas endorsed viewpoints that deem the Confederate flag racist and discriminated against viewpoints that do not.

Tomorrow, analysis of Texas’s government speech and compelled speech arguments.